to produce the most relevant search
results; otherwise, users would switch
to their competitors. 17 However, markets alone are unlikely to address the
concerns of targeted manipulation for
three reasons:
Proprietary algorithms. Users would
not be able to detect targeted manipulation in most cases, as search engines
keep their algorithms secret. 3
Moreover, even if users are more aware of
results manipulation, their expectation of what they are searching for is
shaped during the search process. 17
Consequently, they cannot objectively
evaluate search-engine quality17;
Concentrated market. While the
Internet search market is highly concentrated, a less monopolistic market is unlikely to emerge due to high
economies of scale. 3 Furthermore, incumbents benefit from their existing
user base by, say, collecting user data
through such products as the Google
toolbar. Moreover, the emergence of
new big players is also unlikely, since
promising start-ups could be acquired
by such dominant search giants as
Google and Microsoft; and
User inertia. While switching might
seem easy (users simply type another
address), evidence suggests that personal habit is a key factor when selecting a search engine22; moreover, new
technologies like personalized search
are likely to raise switching costs significantly.
Technological development is also
often mentioned in the context of
search-engine bias. 12 However, while
new technologies may alleviate some
concern (such as reinforcement of
popular sites), no technology in sight
is likely to cure the problem of targeted manipulation.
Two counterarguments often
brought up against regulation of
search-engine bias are that search
results are free speech and therefore
cannot be regulated, and search engines are not essential facilities, as
they do not fulfil the criteria of essential facilities accepted by U.S. courts.
While these arguments have merit, they are insufficient for rejecting intervention for several reasons:
Though the courts have acknowledged
First Amendment rights for search
engines, a number of legal scholars
have argued against this view. 3, 5 Both
markets alone
are unlikely to be
sufficient to address
the concerns
about targeted
manipulation.
arguments emerge from a U.S.-centric
context, which, as the Microsoft antitrust case in the 1990s showed, is not
the only legal arena for regulation.
Moreover, in legal circles it has been
suggested that the existing regulatory frameworks may be inadequate
for something as groundbreaking as
Internet search. Given the state of the
law, governments and multinational
bodies may need to create a new regulatory framework.
search and its stakeholders
Who are the stakeholders and what
are their interests? Mitchell wrote19
that stakeholders are characterized by
power, legitimacy, and urgency. Building on a broad investigation of stakeholder interests in search-engine law
by Grimmelmann, 15 we see four main
actors—users, search engines, Webmasters, and search-engine optimizers—that are, to some extent, characterised by Mitchell’s attributes.
Table 1 is an overview of key stakeholder interests in Internet search
bias and stakeholder recognition of
possible manipulation. Search-engine
optimizers are particularly conflicted.
On the one hand, they stand to gain
from greater transparency in Internet search, as their business would
be easier and more efficient, and a
clearer picture of accepted practices
would enable them to guarantee their
clients that search engines tolerate
their techniques. On the other hand,
they profit from lack of transparency,
as it raises the value of their key assets—expertise and inside knowledge.
Moreover, search-engine optimizers
with good contacts and community-wide attention can profit from their
influence with search-engine companies in “curing” cases of rank demotion. Therefore, top performers
arguably have little interest in greater
transparency.
Commentators have made several
proposals for regulating targeted manipulations. We comment first on the
two most promising, then introduce a
new approach (outlined in Table 2).
Obligation to provide reasons for
rank demotion. One proposal20
suggested establishing an obligation to
provide a reason for rank demotion to
increase transparency in the relationship between Webmasters and search